Posted by
Always To The Right on Tuesday, March 10, 2009 10:09:15 PM
The War Is Over
Our peerless armed forces took Tora Bora and, when we finally let them,
Fallujah. But al-Qaeda won in Washington, and that has made all the
difference.
Last Friday, the U.S. Court of Appeals for the D.C. Circuit dealt a
crushing blow to national defense. The three-judge panel’s ruling in al Odah v. United States
has gotten scarce media attention. Perhaps that’s understandable: It’s
a mind-numbing technical dispute over “discovery” in litigation, vying
for attention against the socializing of our economy and the consequent
collapse of the stock market. But the discovery in question is the most
vital kind, namely, that of classified national-defense information.
What is in dispute is how much sensitive intelligence we must share
with enemies bent on annihilating Americans — enemies against whom the
people’s representatives have authorized, by overwhelming margins, the
use of force. That is, these “petitioners” are the militants who —
along with al-Qaeda’s hierarchy and affiliates — use the intelligence
we give them against the soldiers we have dispatched to fight the
battles Congress has authorized, under the direction of a president
whose first duty is the prosecution of the war.
Most
significantly, the issuing court has declared an end to the war. No
formal armistice has been announced, of course. Instead, as T. S. Eliot
would have it, the judges are ending the war not with a bang, but a
whimper. They are declaring it over by failing to acknowledge that it
is, or ever was, on. It isn’t even background noise.
The courts no longer see themselves as part of the U.S. government. The
U.S. government, like the American people, is at war — or at least it
has been. The courts are not part of that effort. They are spectator
turned critic turned detached manager. Their self-perception is that of
a shadow outside and above the U.S. government, serving not a
Constitution of limited powers but “the law” — an ever-evolving,
all-encompassing corpus of cosmic justice. The courts are not a forum
to which Americans come to vindicate their rights against government;
they are an overlord available to humanity to lodge its grievances
against the American people and their government.
At issue was: In a challenge to the military’s designation of someone
as an enemy combatant, what disclosures of classified information must
the government make to the combatant about its basis for concluding
that he is one of the enemy? The Justice Department took a position
that, accounting for the fact that we are at war, was generous: The
detainee is entitled to learn enough information to support the
conclusion that he is an enemy combatant. As for other information in
the government’s possession, the detainee is entitled only to that
which is actually exculpatory — i.e., information that shows he is not
an enemy combatant. Beyond that, he does not have a need to know. We
are at war, and it endangers both the public and our troops in harm’s
way to give our enemies unnecessary insights about what we know and how
we know it.
The government, moreover, reserved to itself the
power to determine what information in its files was exculpatory. This
was consonant with criminal procedure, where the stakes for our
security are not remotely as high. A criminal suspect, for example, has
no right to force the government to present any exculpatory evidence to
a grand jury, and the government is not required to produce all the
information in its file at any stage — it must merely produce enough to
establish probable cause at the indictment stage, and guilt beyond a
reasonable doubt at trial. Further, the prosecutor is not required to
hand over his file so the judge may independently determine what is
discoverable and what is not. The prosecutor is trusted, in fidelity to
his oath, to disclose that which the law mandates and to withhold the
rest.
ANYTHING TO HELP THE ENEMY
For
the D.C. Circuit, however, these standards, though good enough for
American citizens accused of crime, are somehow not good enough for
alien enemy combatants trying to kill American citizens. The panel
found the government’s “mere ‘certification’” that information was
immaterial, and should not be disclosed, to be insufficient. Allowing
such a “naked declaration,” the judges harrumphed, would turn courts
into mere “rubber-stamps.” Therefore, they said, “it is the court’s
responsibility to make the materiality determination itself.”
More alarming is the judges’ understanding of what constitutes materiality — and what informs, and more significantly does not inform,
that understanding. The court never takes into account that the nation
is under siege, that we are in a state of war against people trying to
destroy our way of life, and that this war has been ordained by our
citizens through the procedures laid out in our Constitution — with the
executive dispatching troops and taking prisoners under the sweeping
authorization and continued funding support of Congress.
This gravely damages the ability of the United States to fight wars
successfully. The primary reason enemy combatants may be detained under
the laws of war is to prevent their return to the battlefield. The
depletion of enemy assets brings the war to a more rapid, more
humanitarian conclusion. American courts now stand this principle on
its head. Henceforth, the price of detaining an enemy operative will be
the coerced disclosure of intelligence that may be more valuable to the
enemy than is the combatant himself. Factor in the enormous resource
drain the litigation requires, and holding prisoners becomes a net loss
for the war effort. And the war effort becomes a waste of time unless
you only kill rather than capture — which is al-Qaeda’s way of doing
things, but not ours.
This outcome has always been the fondest
dream of the anti-war Left. That is why the Democrat-dominated Congress
turned a deaf ear when, after Boumediene, the Bush administration (especially Attorney General Michael Mukasey)
implored lawmakers to fashion rules and procedures for
combatant-detention hearings. “We don’t have to pass anything,” Rep.
Jerrold Nadler told Newsweek.
“Let the courts deal with it.” Democrats knew that, if they sat on
their hands, the courts would do their dirty work for them. And so it
has come to pass. The war is over, at least until the next 9/11 — we
can make ourselves defenseless, but radical Islam is not calling off
the jihad.